Thursday, January 30, 2014

Dear Rich: I just purchased The Public Domain by Stephen Fishman. Glancing through, the author explains how the painting, American Gothic is not' in the public domain. Well, it is! Here is a statement from the Art Institute of Chicago website: "Grant Wood's American Gothic was first published in 1930 but fell into the public domain in the United States in 1958. Wood's estate filed a renewal application in 1980, more than two decades after the one-year renewal window had closed at the end of 1958, but it was too late, so the painting remained in the public domain." What should I believe? The more important question may be, 'what can you afford to believe?' If you have the money to take on VAGA, the licensing organization that represents the estate of Grant Wood, then perhaps you can successfully assert the claims made by academics and by the Art Institute of Chicago (where the painting hangs). However, keep in mind that not everybody believes the work is in the public domain. In American Gothic: A Life of American's Most Famous Painting(2006), author Steven Biel states that the copyright status of American Gothic "is a matter of considerable murkiness and disagreement." He notes that Nan Wood, who acquired rights from Grant Wood, registered a reproduction of the work in 1952 and renewed the copyright in 1980. If the 1952 registration is valid, then the renewal would be likely be, as well. Although we have our doubts as to the copyright status of the work, we'll sidestep a final verdict on public domain status because the answer can only come from the courts ... which leads us back to your pocketbook (and its size). VAGA maintains that American Gothic is not public domain and continues to assert rights against others, not just for copyright infringement but also for commercial uses of Nan Wood's image (right of publicity). We're all for cultural freedom, but from a practical perspective, if you're using the image ... watch out for that legal pitchfork.

Wednesday, January 29, 2014

Dear Rich: Are typed transcriptions of handwritten public domain documents (such as the Declaration of Independence) in the public domain? Yes. In a district court case, a company copied a museum's photographic reproduction of a public domain painting. The court refused to stop the "slavish" copying of a public domain work because the copy lacked sufficient originality. In another case, the Supreme Court refused to protect a database of public domain data because the organization of the database also lacked sufficient originality. We believe that the same rules would apply to transcription of public domain documents. Typing up the words (without adding anything original) may involve skill and "sweat of the brow" but it does not provide sufficient originality to remove the work from the public domain. Even the use of a creative typeface is unlikely to trigger protection as copyright does not protect the appearance of type.Speaking of the Declaration of Independence and Typefaces ... Who knew that one man's signature would inspire font collections and eventually become the registered trademark for a financial institution.

Tuesday, January 28, 2014

Dear Rich: My husband is an artist. We recently discovered two issues we need clarified: (1) We found photographs of his murals for sale on a well known online image registry. We believe this is copyright infringement. (2) He painted scores of murals on canvas in many prominent casinos that were, unknown to him, painted over and destroyed. These could easily have been removed for preservation. What are his rights with regard to the VARA Act?
His works were published in print and he has maintained a website since 2001, he can easily be contacted. It appears to us that no attempt was made to seek his permission to sell photos of his works, or to give him the option to remove his works before they were destroyed. What recourse do we have in these situations? Before considering revenge, you need to examine all of your husband's documentation for the artwork at issue. Specifically, you need to confirm that your husband is the copyright owner because only the owner of copyright can assert copyright claims. For example, artwork that is made for hire cannot be the subject of VARA claims. And speaking of works made for hire, you need to be confident that your husband was neither a qualifying independent contractor (with a signed transfer of rights), nor an employee.If your husband is owner ... Assuming your husband can demonstrate ownership, you should contact a copyright attorney. Both of the scenarios you discuss are infringements and more importantly, the entities committing these infringements appear to be deep-pocketed. In other words, the potential damages may justify the financial costs of pursuit. In order to pursue copyright litigation, you will need to register the works with the Copyright Office (although no registration is required if only the VARA claims are made).What's VARA?The Visual Artists Rights Act (VARA) amended the Copyright Act to provide artists with attribution (the right to take or not take credit) and integrity (the right to prevent distortion, modification or mutilation). As for destruction, VARA does not apply if your husband's mural was created (or installed as a mural) before December 1990, or if your husband waived his rights in a written agreement, or the destruction occurs naturally (due to the effects of time or the composition of the materials). When artwork is incorporated in a building and the owner plans to modify the building (which will affect the artwork), the owner must provide the mural artist with notice so that the artist has the opportunity to remove the work, or pay someone to remove it. (In order to insure that notice is received by the artist, the Register of Copyright was supposed to establish a system whereby the artist may record identifying information at the Copyright Office. However we were unable to uncover any evidence that the registry was ever created.)What does VARA protect? VARA only applies to “works of visual art” defined as: (1) a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or (2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author. You can read more about VARA here and here.

Monday, January 27, 2014

Dear Rich: I'm contacting you regarding IP patents for a product I have recently put into commercial format. What I am trying to protect is a unique pedagogical approach involving music and language. There is currently no commercial product that uses this system. I have used and developed my unique method over the last ten years After some research, my understanding is that I have a year to determine whether my product is commercially viable after applying for a provisional patent which I did this month. My question is: What constitutes evidence that a product is commercially viable in order to become eligible for a regular patent? I have been using the IP for the past 10 years and it is my primary source of income. Now that I have it in product format (an audio instructional CD for acquiring a creative skill) I would like to know how I can document the commercial use of it. Is it just through sales of the product? If so, how much constitutes viability? Can I use the classes that I teach using this IP as evidence of commercial viability? We're glad you're making money from your concept and we'd like to see you continue to do so. However, we're not sure there is a patent in your future. That's because the USPTO won't grant patents if the subject of an application has been publicly disclosed by an inventor more than one year prior to filing a patent application. If you've been using this method to teach for ten years, that would probably be a disqualifying public disclosure.Determining commercial viability. Although we recommend determining commercial viability before filing a patent application -- it can save you thousands in fees -- it's not a prerequisite for patent protection. There are many ways to assess commercial viability for an innovation and in his book, Patent It Yourself, David Pressman lists over 60 factors that can make a difference such as cost, ease of use, ease of production, durability, convenience, novelty, etc. Many of these innovation factors may not be applicable to a music-teaching system and you can probably get a relatively reasonable perspective by reviewing the music-teaching systems industry -- that is, the sale of instructional book, CDs, DVDs and apps. If you have the funds to have someone else review an innovation, two independent invention evaluation services considered reputable by Pressman are: the Wisconsin Innovation Service Center, and the I2 Innovation Institute. Otherwise, avoid invention promotion scams.

Copyright and Trademark. You can't stop others from using your publicly disclosed ideas but you can stop others from copying the way you express those ideas using copyright law -- for example, your books and CDs on the subject. And, if you can register the name of your system as a trademark, you can prevent others from using a similar name. You can't stop others from discussing the underlying principles of your method as we wrote about in a recent post.

Friday, January 24, 2014

Dear Rich: If a scientific method is used/incorporated into an app does the use require permission from the author? I have noticed some apps are out there that have relied on other publications such as maps/guides. Would the use of someone else's math theory/process require permission? It depends on what you're writing about and how much explanatory information you're borrowing from the source material. Copyright does not protect "ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration." In other words, you can't stop someone from copying the basic principles of a method or system -- for example, a recipe, a method for conducting contests, the protocol for CPR, a betting system, or a bookkeeping method -- but you can stop someone from copying another person's explanation or illustration of the method. Telling the difference is the hard part. Many courts have wrestled with the issue and the Supreme Court weighed in 135 years ago saying that publication of scientific books would be frustrated if "the knowledge could not be used without incurring the guilt of piracy of the book." If you want to protect the system, the Supreme Court said, use patent law.What about patent law? If the system is patented, you can discuss it, write about it, and reproduce the information in the patent ... but you cannot make, use or sell the system. For example if someone patents a system for sending water usage statistics from your water department to your cell phone, you can write about the system but you cannot create an app that uses the system.What about maps and guides? We wouldn't advise copying someone else's map for an app either. Maps and guides are protected under copyright and wholesale copying is considered an infringement. (The earliest copyright laws in the U.S. were clear to protect "maps, charts, and books" in order to encourage the development and growth of the nation.)PS Dept. We assumed you're not referring to the Scientific Method - question, hypothesis, prediction, testing, etc. -- which is centuries-old and in the public domain (just as is any method or explanation published in the U.S. before 1923).

Thursday, January 23, 2014

Dear Rich: I am part of an LLC that owns a blog. One of our officers was the active blog contributor. She died last year. Some of the other officers would like to publish her blog posts, but we are unsure who owns the copyright - the LLC or her heirs? Copyright ownership may hinge on any of these factors: (1) did the LLC operating agreement transfer rights? (2) was the officer an employee of the LLC? or (3) did the LLC enter into a contract with the officer? (We're presuming that the officer was one of the member/owners of the LLC).What does the operating agreement say? The operating agreement is the rule book for the LLC owners. Does yours say anything about ownership of copyrightable materials? If it assigns or transfers ownership to the LLC, then you are in the clear. (Note: LLC operating agreements don't always address these sorts of intellectual property issues.)Was the officer an employee of the LLC? An LLC member/owner is not automatically an employee of the LLC. (The determination of employee payments may affect how LLC members are taxed.) If the LLC treated the officer as an employee -- for example, paid a regular salary or provided benefits, any copyrightable work created within the course of employment would be owned by the LLC under work made for hire principles.

Did the LLC enter into a contract with the officer? Even if the officer was not an employee, it is possible that the parties entered into a contract that transferred some or all rights to the officer's blog entries. In the absence of a written agreement, there may be an implied license for the LLC to use the officer's entries. If you anticipate a dispute with the heirs over this issue, it's prudent to consult with an attorney.
PS Thanks to Steve Fishman for his comments on this one.

Wednesday, January 22, 2014

Dear Rich: A friend has made a documentary film of his friend and author/NY Times reporter (and gay activist) who recently died of ALS. There is a 5 minute clip of the subject on the Charlie Rose show. I have not been able to find a copyright registration for the Charlie Rose show (public broadcasting service). We want to exhibit the film at the nonprofit Maryland Film Festival where entry tickets are sold. Would this qualify as fair use? And is the Charlie Rose Show copyrighted at all? Any help is appreciated. Yes, the Charlie Rose Show, like all PBS shows, is protected under copyright law. We believe the rights are owned by Charlie Rose LLC and you should be able to reach the proper permissions person at Charlie Rose, Inc., 731 Lexington Ave, 7th Floor, New York, NY, 10022 (or by writing to charlierose@pbs.org) You can also read more about the terms and conditions of clips hosted at Charlie's website.Why no registrations? If you searched copyright records and did not find any registrations for the show, that doesn't mean that the show is notprotected. Registration is not a requirement for copyright protection, although it is required for a lawsuit.Would your use qualify as a fair use? Maybe, but we doubt it. A five minute clip might be considered too long to qualify. In any case, it could prove fairly expensive to find out -- the only way to be positive is to have a court rule on the matter. We'd suggest that you peruse some fair use cases dealing with audio-visual works.

Monday, January 20, 2014

Dear Rich: I recently went to a boating website and found a picture of my boat in an article about boat insurance. The picture was taken when my boat had a bit of a dilemma (she is back in her glory). I was never asked about the use of the photo and the boat is now on the market, so I am concerned about bad press. I was going to ask the article writer if he could kindly use another photo. Is there anything that is not legally kosher? We've reviewed the photo in which your boat is keeling portside. We're glad the craft has recovered but alas, we don't believe there's much you can do to prevent publication of the photo.Public pix. You can't stop people from shooting photos of your boat if it is in a public place. The photographer is free to reproduce these photos for editorial purposes (informational uses such as the boat insurance article). The same may not be true for commercial uses (for example, an ad for boat insurance), because there is an argument you may be able to assert that people associate you with the boat and the use in ad implies your endorsement. That's expensive, and you may have to be a Tiger Woods to pull that one off.Copyright issues. If you took the photo, or you acquired copyright from the photographer, you can claim copyright ownership and demand that the unauthorized use stop. (We have the feeling that's not the case.)What to do? We like your suggestion to kindly ask that the author change the photo (or at least block out the name of the craft). Sometimes people can be surprisingly reasonable. If the author doesn't cooperate, there's not much you can do except hope it fades into obscurity.BTW Dept. As the seller you probably know you can't conceal existing flaws. So if the incident caused damage, you may have a duty to disclose that. State laws may differ on this requirement.P.S. Dept. You asked whether the reproduction was legally kosher? Not to put too fine a point on it but the true meaning of "kosher" is that something -- food or a ritual -- conforms to Jewish law. We couldn't find any Jewish boating laws but we did find evidence of Jewish copyright laws.

Friday, January 17, 2014

Dear Rich: I paid $4,000 in lawyer fees to file for a trademark and to send a cease and desist letter. At this point the law office wants to charge $10,000 that goes up to $80,000 to obtain an Injunctive relief or restraining order against a business that is infringing on my trademark (business name). Can you suggest any book or reference that I can use to proceed on filing with the court for a temporary injunctive relief by myself? Our book, Trademark: Legal Care for Your Business and Product Name explains how to file an application for federal trademark registration and explains what to expect when pursuing or defending a trademark lawsuit. But it won't tell you most of the essential details of managing a trademark lawsuit such as interpreting the federal rules of procedure, preparing interrogatories or filing a complaint. We don't know of any book for non-lawyers that does that although there are books written for practitioners. The truth is that trademark litigation may be too complex for pro-se parties to navigate.Have you weighed your options? In trademark litigation -- where damages rarely cover the costs of litigation -- you have to be careful not to let emotional reasoning dominate your decision-making. Always keep in mind that lawyers love a client who fights because of "principle." We know it is anger-making to find another business using a similar name. But before you seek injunctive relief, speak with your attorney about the likelihood of success. If you're not satisfied with your attorney's answer -- it's evasive or unclear -- get a second opinion! Determine as best as possible what the impact of the other mark is on your business? Do you have actual customer confusion or lost sales? If not, proceed slowly. Is it possible to engage in trademark arbitration with the other party? That may save money and be less hassle. If you decide to continue with your attorney, here are 10 tips for minimizing costs (scroll down to "Keep it Cheap.")

Thursday, January 16, 2014

Dear Rich: I saw your video about trademark searching but it didn't answer my question which is how do you search to find out if somebody else is using a similar image or design. I'm not that worried about the word part of my mark, just this image. Is there a way to do that? We're using a drawing of a horse. In order to locate marks with similar designs, it helps to know the trademark design code, a 6-digit numerical code that the USPTO assigns for searching purposes. These codes can be found in the USPTO's Design Search Code Manual. Click Keyword Search, type in "horse" (or whatever best describes your image) and locate the code. In your case, the design code for "horses, donkeys and zebras" is "03.05.01". You will note that this code would not be appropriate for mythological (or winged) horses or for images of people riding horses.You have the code, now what? Once you know the code, you can then use the Trademark Search feature on this page. Choose "Word and/or Design Mark Search (Structured)". For the "Search Term," insert the code, and for the "Field" choose Design Code from the drop down.

In the second search term box, you can enter goods or services (choose "Goods or Services" from the Field drop down), information about the design such as "galloping" or "saddle" (choose Design Description from the Field drop down), or any other combo of search term and field. Make sure you choose "AND" from the Operator drop down on the right side

Wednesday, January 15, 2014

Do I have any recourse against an almost invisible entity, muebooks.com, which is offering a free download of a book for which I co-own the copyright? Alas, there's probably not much you can do about the activity occurring at muebooks.com aka MyBookez. According to Network Solutions Whois, the site is based in China and owned by Xin Net Technology Corporation. We doubt that a DMCA notice to the ISP owner would have much effect and we didn't find any previous notices at the Chilling Effects repository, either. In any case, here's an explanation of the DMCA procedures and here's a DMCA template. You can also send a copy to Google (here's where to start) which may result in your MyBookez page disappearing from Adsense or Google Search results. You can also try a company like DMCA.com (although we can't vouch for the effectiveness or reliability of fee-based third-party DMCA notifiers).

Monday, January 13, 2014

Dear Rich: I am completing a scholarly book about the film, Blade Runner, and want to use an image from the film on the cover. I know who the copyright owner is -- it is "The Blade Runner Partnership" -- the problem is that I cannot for the life of me acquire contact information for the copyright owner. I've tried everything I can think of and have been stymied. In cases like this, is a disclaimer usually enough to permit use of an image? No, a disclaimer won't get you much if you're infringing copyright (though a prominently placed disclaimer may help you avoid stepping on the film's trademark).Who owns the rights? Although Blade Runner rights are attributed to the Blade Runner Partnership and the Ladd Company, the controller of rights appears to be Bud Yorkin, the man who brought us What's Happening!! and who supposedly caused the "happy ending" to be tacked on to the Blade Runnerdomestic release. That's just a guess based on the fact that Yorkin is credited as the transferor of prequel rights to Warner Brothers. In any case, our experience is that film producers usually don't want to deal with granting permission for stills. We'd suggest that you find a site such as Corbis Images that offers licensing rights to production stills and that also offers services to obtain rights on your behalf.

Friday, January 10, 2014

Dear Rich: Can you give a little more information about what constitutes “published?”
For example: If a family photo is taken in 1888 and not published at that time, but, say, 90 years later, someone who is not the copyright holder prints it in a book, is it now considered published, and since it was created before 1923 it’s public domain? Or is it still considered unpublished since the copyright holder is not the one who published it and therefore will not be public domain until 70 years after copyright owner’s death? Does it make a difference whether the person who publishes it does so with or without the consent of the copyright holder (assuming one exists)?
And how does Internet posting count in all this? If the copyright owner has not consented to the publication, then the work is not "published" for copyright purposes. That's because only the copyright owner has the right to publish (that is, distribute more than limited number of copies to the public). As we mentioned in a related post, the only way a work from the 19th Century would still be protected would be if it (1) was first published after 1977 and before 2003, in which case the work is protected until December 31, 2047. (Notice is required for works first published before March 1989.), or (2) was first published after 2002 and the photographer died after 1943. There are some other possibilities for continued protection and you can figure them out using the public domain chart. As we mentioned in our post, it's highly unlikely copyright will be asserted in material more than 90 years old because it is usually difficult to trace the chain of copyright title.What about Internet posting? As we mentioned in another recent entry, posting material on the Internet is generally considered to be a publication, assuming there is a means of reproducing or downloading the material.P.S. Dept. A minor correction in your question ... to qualify as PD, a work must be published (not created) before 1923. For more help, check that helpful PD chart, we cited above.P.P.S. Dept. We hope you don't mind that we cut your question in half. We are followers of FDR's maxim, “Be sincere. Be brief. Be seated.”

Thursday, January 9, 2014

Dear Rich: My dad published a book in 1959, but did not renew the copyright, so its now in the public domain. After going through his documents, I found that the published document was actually only part of a larger manuscript, and there is more material at the front and back. If I were to publish the full manuscript, could I copyright that, or would the copyright be only good for the previously unreleased material? You're correct that the unrenewed 1959 publication is in the public domain. Your copyright would only cover the new material. Like they say about Las Vegas, what happens in the public domain, stays in the public domain (with some technical exceptions of course). When registering the new work at the Copyright Office, you would need to declare the public domain materials when asked about "pre-existing works."

Wednesday, January 8, 2014

Dear Rich: I have a question regarding using pictures from the internet for a geology course lab manual. Can this be done at all, or does it infringe upon copyright laws? Can the manuals be sold at the campus bookstore, or can they be given out freely to students in the course? If you try to contact the owner of an image, for its use in said manual, and they do not reply in a certain period of time, can you use the image anyway? In answer to your three questions: (1) Using geology photos without permission is infringement unless the photos are in the public domain like those offered by the USGS (all items at the site are considered public domain unless otherwise marked). Textbook publishers can also run into problems when they get permission to license photos for geology books but then fail to abide by the license. Of course, if the copyright owner never learns of your use, none of this will be an issue. (2) In terms of infringement, you are equally liable whether you give your textbooks away or sell them (although the commercial/noncommercial difference may affect the amount of damages). In addition, noncommercial educational uses may permit you to use photos for free from this site. (3) The failure of a copyright owner to respond promptly doesn't mean you can use the photos. The photo may be an orphan work in which case you must decide whether to risk publication. (Was it really six years ago that orphan works legislation died?) Or it's possible that the copyright owner might simply have changed email addresses. In either case, a failure to respond doesn't create an implied license.

Monday, January 6, 2014

Dear Rich: I work for a publisher and one of our authors has quoted a definition from Merriam-Webster’s dictionary in his textbook. May entries from the dictionary be used without permission in editorial publications? The source would be cited. Below is Merriam-Webster's definition of "fair use?"

noun. a legal doctrine that portions of copyrighted materials may be used without permission of the copyright owner provided the use is fair and reasonable, does not substantially impair the value of the materials, and does not curtail the profits reasonably expected by the owner.

Based on that definition, we think you'll be fine using a single excerpt without permission (you can get more fair use here). We add our usual disclaimer: fair use is a defense with the final outcome determined by a judge.If you're uncomfortable relying on fair use ... You can review Merriam Webster's copyright policy and seek permission as provided. If you don't want to ask for permission or rely on fair use, perhaps your definition exists in one of these public domain dictionaries (scroll down).The real world ... A lawsuit over a single definition would not be a brilliant public relations strategy. Dictionary publishers concentrate their legal arsenal on those who purloin groups of definitions.

Friday, January 3, 2014

Dear Rich: I'm running a small art print business selling my own artworks primarily. Most of these artworks can be considered as motivational works for US Air Force, US Marine Corps and US Navy personnel.
My plan is to also sell prints of photos that fall under public domain being DoD (Department of Defense) photos (no recognizable persons on the images). In this regard I'm looking for proper regulations before I get into that. Under what circumstances is it legal to do print reproductions for commercial use - if any? I've outlined three cases and I'd highly appreciate to get your feedback on each of them.
Case 1:
I'd use the Public Domain photo in the form as it was publicly released to sell them as prints. Is this legal? Do I have, to or is it advisable to, credit the photographer if it's a PD image?
Case 2:
Same as above, but I'd process the image, improve it's image quality, color reproduction and potentially crop it or change proportions.
Case 3:
I'd use parts of released PD photos to recreate new work of art/photo composition. You're correct that the imagery available at the DoD's website is in the public domain (unless the material is marked otherwise). That's because under U.S. law, any works produced by federal government employees within the course of employment is considered to be in the public domain. That doesn't mean the government has to give you the works for free -- for example, the DoD can charge for duplication and handling charges. The government can also establish restrictions on commercial uses. Assuming you meet the standards for your commercial use, there doesn't seem to be anything prohibiting you from your three case scenarios. The DoD often provides the name of the military photographer but we're not seeing any requirement that attribution be provided with each use. That's up to you.But wait there's more ... The rules regarding accessing and acquiring DoD imagery are about to change. According to announcements made last month, a private company has been awarded a contract to digitize and license DoD content. Here's the DoD's statement of objectives for the project and here's an article explaining how it works. In short, accessing DoD works may involve more fees and more licensing restrictions.

Thursday, January 2, 2014

Dear Rich: I want to sell small handmade puppies of Mr. T. I am not planning to make a big amount of money, but I wouldn't like to have any problems. Do I need to contact any trademark office, pay a fee, or is there no requirement? The Dear Rich staff doesn't like to mess with our readers' questions but we think you're referring to handmade puppets, not handmade puppies (maybe you're a victim of auto-correct?). In any case we'll provide an answer for both scenarios.Selling handmade Mr. T puppets. If you manage your sales privately and without much fanfare, you're probably fine. But if your puppets are spotted by Laurence Tureaud (aka Mr. T) , then you might receive a cease and desist letter. We assume Mr. T enforces his right of publicity (the right to exploit his personna for commercial purposes) based on the varied collection of kooky merchandise that he exploits. If you seek to register a Mr. T trademark for the puppets, you will also run into a problem because trademark law prohibits registration of the name or likeness of a living person (Mr. T. is alive and even has his own app!) without that person's consent.

Selling handmade Mr. T puppies. If you will simply be shaving the dog's head to resemble the Mandinka warrior hair cut popularized by Mr. T, you may face animal cruelty issues. As for any attempts to exploit the Mr. T name or personna in your marketing, see above for the right of publicity issues.